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Monday, September 16

Modern U.S. lawmaking and the original police state: Part 4 of "From Economic Collective to Police State"

Would you know a police state if you tripped over one?
Not if the standard reference works had anything to say about it

In the post that introduced this series I wrote that the United States is becoming a police state. In this I wasn't referring to a future event; I think it's happening now and happening as much in the name of financial stability as national security. I've also argued that the path to the American police state is through widespread acceptance in the USA of what I've termed economic collectivism. But how would this path end in a police state?

The term "police state" has been invoked a great deal since Edward Snowden's revelations about NSA's draconian clandestine surveillance programs and their rubber-stamping by the FISA secret court. Yet given that the first English translation of the German term Polizeistaat was to describe totalitarian states that arose in 1930s, and that the best known English-language fictional treatments of the police state follow this view of the police state (e.g., George Orwell's Nineteen Eighty-Four), it's hard to entertain that the USA's 'liberal' democracy and adherence to a rule of law could produce a police state in this era.

However, the original police state was a far cry from a totalitarian state, a fact that the modern standard reference works don't make clear. Indeed, the definitions of the police state provided by references such as Wikipedia, Merriam-Webster and Oxford English dictionaries, which refer to modern ideas of the police state, are vague, confusing, or even contradictory. To provide just one example of how much confusion has arisen around the term, here is Merriam-Webster's definition of a police state:

"A political unit characterized by repressive governmental control of political, economic, and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures."

The Encyclopedia Britannica Online discussion of the totalitarian state flatly contradicts Merriam-Webster:

"Police operations within a totalitarian state often appear similar to those within a police state, but one important difference distinguishes them. In a police state the police operate according to known, consistent procedures. In a totalitarian state the police operate without the constraints of laws and regulations."

The upshot of all the confusion, as bluntly noted by the Wikipedia article, is that "it is impossible to objectively determine whether a nation has become or is becoming a police state."

So while the original meaning of some terms is best left in the ash can of history, in the case of the police state it pays to trek back through time and study the original police state. Yet this is easier said than done. The paper I quote below mentions in passing that it wasn't until the closing years of the 20th Century that scholars obtained two key source documents that provide several missing pieces about the original police state.

(As to what took the scholars so long -- the paper doesn't say, but it's likely that many records of the original police state were lost, destroyed, and/or locked away in vaults until declassified.)

The Original Police State

One scholar who made great use of the source documents is a sociologist named Mathieu Deflem. His revelatory paper International Policing in Nineteenth-Century Europe: The Police Union of German States, 1851-1866 was published in 1996 in the International Criminal Justice Review (6:36-57)

The first police state was launched in imperial Austria in early 1851, but this was by no means a totalitarian state -- totalitarian being a term derived from dictator Benito Mussolini's totalitario form of government, which aimed to mold the entire Italian populace into a singular body animated by the dictates of the government.

In 1851 the Austrian Crown was far too busy trying to prevent a replay of the yearlong protests and rebellions that exploded in the kingdom (and across most of Europe) in 1848 to attempt to mold anyone. The tiny Austrian police force had simply been caught flat footed by the mayhem. The last time the police forces across the Germanic kingdoms had been modernized was in the 15th Century.

Although Mathieu doesn't mention the term "police state" he explains how such a state came into being: as part of a concerted attempt by beleaguered police forces in Austria and other Germanic kingdoms to modernize their surveillance methods in response to a new and very unsettled era, one that spilled across borders in the Germanic kingdoms and beyond. That the police went overboard in their modernization drive there is no doubt, as these passages from Mathieu's writing indicate (emphasis mine):
The [Police] Union's centerpiece was the elaboration of a secret system to gather and transmit information (Siemann 1990:46-50). In the first instance, information was exchanged during police meetings. These took place every year between 1851 and 1866, with two meetings in 1851, 1853, and 1855, and three in 1852.

The discussed information especially concerned the so-called leaders of the revolutions, German as well as French, Italian, Polish, and Hungarian political opponents.

Referring to themselves explicitly as "political" police, the Union's agents did not focus on "regular or ordinary crime", directing their activities primarily to matters that could threaten the stability of the political order (Siemann 1990:50-52). Importantly, however, political activities were defined in an expanded way.

Therefore, for instance, also controlled by the Police Union were migrants, religious groups, Freemasons, gymnastics groups, labor organizations, and student movements -- in sum, everybody who was believed to possibly, but did not necessarily, organize political opposition.
The paper also mentions that the press and publishing houses were monitored. And we can learn from Wikipedia's history of the 1848 revolutions that the aristocracy must have also come under police surveillance. Basically everyone and his uncle had a grievance of one kind or another with the state, which meant that basically everyone had come under suspicion for crimes.

And so, in the name of protecting the populace, the police had in effect criminalized it!

Here we can finally see the chief characteristic of a police state and thus its objective definition: It's one in which the government considers the governed to be criminals.

If a society is composed of criminals this certainly explains why it's necessary to police it rather than administer to it. But as Wikipedia's article on the police state indicates, how and under what circumstances the state carries out its policing can vary widely. This has fueled disagreements about whether a particular nation is a police state. And it's led to a confusing scoring system in the effort to determine how far a government has gone toward becoming a police state. (See the Wikipedia article.)

The definition I've extracted from Mathieu Deflem's research leaves no wiggle room for sliding scales. Either the government has criminalized the population or it hasn't. If a government hasn't done this, then I'd say no matter how unlawfully it might act, no matter how brutal its measures to enforce order, it can't be considered a police state.

At the same time the definition implies that a police state can develop under any type of government, including a democratic one. But how could a police state happen in a 'liberal' democracy -- one with a generally law-abiding population, one not in rebellion?

The answer is chillingly simple: Through the creation of so many laws that the citizens can't help but be in violation of the law at one time or another. VoilĂ ! A society of criminals.

Just such a society is being created in the United States because of a glitch in the way our republic has evolved:

Rule of Law vs Government by Lawmaking

There is a difference between the principle of a rule of law and the practice of governing through lawmaking. Somehow, over the passage of time, the difference got blurred in the United States.

(This article clearly explains the principle of a rule of law and how it was interpreted by the framers of the U.S. Constitution.)

As to where the blurring has led: even with a large harem an absolute monarch can only produce so many offspring within his lifetime -- and monarchs die, leaving the next monarch free to sweep away many of his predecessor's laws. But there is no limit to the number of laws that can be created when a country's duly elected governing body exists to write laws, and which is a perpetual process not relieved by the death of any legislator. And the horror, the stuff of nightmares, is that much of the legislation requires the creation or expansion of regulatory regimes to implement and oversee the laws.

And so, after centuries of government by lawmaking, Americans inadvertently backed into the very situation that the U.S. Constitution's framers sought to avoid, a rule not of law but of men: men (and women) charged with enforcing ever-proliferating regulations arising from ever-proliferating laws.

From there it only requires the right conditions before government criminalizes the entire population, for when a law governs even minute aspects of individual behavior there are an ever-proliferating number of law breakers. That is how a democratic nation, a republic without a history of being ruled by kings or a military, can become a police state.

What are the "right conditions" in the USA?

The conditions are evolving from two draconian laws, the Dodd-Frank Act -- aimed at "financially stabilizing" the USA -- and the Affordable Health Care Act, which together are generating virtually countless regulations. These are converging with all the other laws piled up in the United States.

Some U.S. states are mounting a constitutional challenge to Dodd-Frank, which should have as much success at the Supreme Court as the challenge to the health care act. But even in the unlikely event the challenge succeeds this will not stop the criminalization of American society. So before racing ahead with more constitutional challenges, more political action committees, I think Americans need to confront the fact that they've reached the outer banks of managing their affairs through lawmaking.

That's just my view, that's just what I've confronted as an American about myself. After all, I was born and raised in the USA. It wasn't easy for me to get my head outside my cultural paradigm, so to speak. But how I think now explains why the solutions I'll offer in later posts aren't concerned with politics and the legislative process.

How, then, would I propose Americans back away from a police state? Same way one rows out of the marshes back to solid land. Carefully. And with emphasis on "I" doing the rowing not "Them."

Untold billions of dollars have been poured into changing Washington, yet it's remained the same. It will remain the same until Americans change themselves -- specifically, as I noted in an earlier post, change their view of money and wealth.

But before I discuss solutions there is more slogging through the lay of the land. In the next post I'll talk about Dodd-Frank and the Financial Stabilizers. That will round out the series on economic collectivism and the police state. Then I can return to the series I started earlier this year under the title "Money, Wealth, and You."


One of the justifications offered for the NSA recording everything, everywhere in the US is that in case somebody comes to the attention of the 'security forces' at any time in the future, said forces can go through recorded data and more easily get the goods on him. The NSA and all their allies and defenders already view us all as criminals whose activities must be minutely observed and recorded for evidentiary purposes.
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